amily Law – Judicial challenges against paternity
Right to personal identity;
Right to form a family;
Right to know one's parentage;
Right to protection of an existing family;
Conflict between fundamental rights;
Imprescriptibility of the right to act judicially
RULING No. 309/16
18 of May of 2016
The Court found no unconstitutionality in a Civil Code norm under which a son or daughter has three years in which to bring an action challenging his/her presumed father’s paternity, counting from the date on which he/she becomes aware of circumstances which could lead to the conclusion that he/she is not the biological child of his/her mother’s husband (these three years can be added to the ten years that any child has for this purpose following his/her coming of age or emancipation).
It is in the interest of public order that filial bonds be constituted and determined, inasmuch as the legal efficacy of the genetic bond of filiation not only has repercussions for the parent/child relationship, but is also projected beyond it. It is in the public interest to establish the match between biological parenthood and legal parenthood, thereby rendering the legal bond of filiation and all its effects operable, as soon as possible. This interest is also projected into the subjective dimension, in the form of security for the investigated party and his family. The Court noted that it is important for someone whom it is suggested may or may not be someone else’s father (a bond with both personal and material effects) not to be subject to the possibility of an investigation action for an unlimited period of time.
The attribution of paternity on the basis of the general rule that the mother’s husband is the father, which is itself based on judgements of normality and probability, results in the formation of a filial relationship that possesses significance on the constitutional level. The Constitution recognises that the family possesses a specific importance, both within the dimension of the fundamental rights of family members, and as an institution which structures life in society. This family relationship would be seriously undermined if actions to challenge paternity could be brought at an unlimited point in time. The life of the family community and the stability of family and social relations would be compromised. Notwithstanding the firmly established nature of the right to know one’s biological origins, the law must also consider the need to protect constituted families.
To allow legal bonds that are not in line with the biological truth to be ended at any time would be to ignore any interest on the part of the presumed father in maintaining a fatherhood which he had thus far assumed. Even if the legal and biological bonds between the two individuals do not match, there is a point in time at which the presumed father’s personal and material interests justify the definitive legal consolidation of a paternity that does not correspond to the biological truth.
It is justifiable to say that a presumed child who finds out that his/her mother’s husband is not his/her biological father should declare whether he/she wants to maintain or extinguish the existing legal bond between them as soon as possible.
The means par excellence of protecting these deserving public and private interests is the setting of time limits after which the ability to exercise the right in question lapses. Such limits serve as a way of inducing the right-holder to exercise his/her right quickly.
The right to establish a bond of filiation is not an absolute one. It falls to the legislator to use its freedom to shape legislation in order to choose the way or ways that seem most appropriate to it in order to concretely implement that right, naturally within the limits imposed by the Constitution.
If there were no time limit on paternity investigation actions, and someone at a later stage of their life were to be able to exercise a right they had previously neglected, the right to personal identity might enjoy the highest possible level of protection, but this optimised protection is not necessarily what the Constitution demands.
Objective reasons linked to legal certainty and security, themselves dictated by society’s interest in the stability of established family relationships, justify placing a certain time limit on the right to challenge one’s paternity, thereby ensuring that once that limit has passed, the core family is unalterably defined and its members can orient their own lives on the basis of an existing legal reality. Assuming the right-holder is in possession of the facts that enable him/her to exercise the right, it is legitimate for the legislator to set a time limit from the moment at which that knowledge is acquired for bringing an action to challenge paternity, thereby preventing the interest in legal certainty and security from being undermined at a later date by a consciously omissive and uninterested attitude on the part of the presumed offspring.
The Court said that when the legislator opted to simultaneously protect other relevant legal values by imposing time limits following which the right to challenge lapses, it did not disrespect the requirement that the protection afforded to this right be sufficient, inasmuch as the restriction only places the right-holder under the burden of exercising his/her right within a given period of time.
The Court thus concluded that the Constitution does not preclude subjecting the bringing of actions to challenge presumed paternity, when filed by the offspring, to a statute of limitations.
The Public Prosecutors’ Office was legally required to bring this concrete review case in the form of an appeal against a decision in which the Supreme Court of Justice (STJ) refused to apply a norm on the grounds that it was unconstitutional. The norm in question is contained in the Civil Code (CC), and says that when sons/daughters become aware of circumstances which suggest their mother’s husband is not their biological father, they have three years in which to legally challenge his paternity. The paternity in this situation is one that results from the (rebuttable) legal presumption that the husband of a mother whose children are born or conceived during the couple’s marriage is the children’s father. The norm sets a subjective dies a quo time limit that is available in addition to an objective dies a quo limit under which a son/daughter can challenge presumed paternity for up to ten years after coming of age or emancipation.
The Constitutional Court had already considered the constitutionality of norms according to which the ability to investigate or challenge paternity lapses, both before and after the significant amendments to them made by a 2009 Law, under which the applicable time limits were substantially increased.
In its jurisprudence on the subject of time limits on the ability to bring filiation actions – i.e. paternity investigations and challenges – the Court had never absolutely rejected the constitutional admissibility of a system under which that right can lapse with time, nor had it ever said there is any constitutional requirement for an unlimited determination of the biological truth of parenthood. It had, however, considered that the existence of excessively short objective or subjective dies a quo time limits (which start counting when the holder of the right becomes aware of the fact that leads him/her to act) is capable of reducing the scope of the essential content of the constitutional rights to personal identity and to form a family, which include the right to know who one’s mother and father are or were, and that such limits could violate the principle of proportionality.
The Court had also already pronounced itself on the specific norm before it in the present case, but on those occasions the issue was the concrete time limit set in the norm and not the inability to ever challenge paternity once the limit is passed.
Norms that establish a time limit for bringing filiation actions always involve a weighing up of various rights and interests to which the Constitution affords its protection, and the ensuing balance can vary one way or the other, depending on the greater or lesser weight attached to each of the values or assets the legislator is seeking to protect. In the light of the constitutional principle under which the ordinary law is only allowed to restrict constitutional rights, freedoms and guarantees in cases in which the Constitution itself expressly permits it, and that such restrictions must be proportional to that which is necessary in order to safeguard other such rights, freedoms and guarantees, it is thus possible to conclude that in some cases the legislator has disproportionately restricted a fundamental right, and in others, not.
As the Court had repeatedly said in the past, the right to know one’s biological paternity and the right to form and/or destroy the respective legal bond fall within the scope of protection applicable to the fundamental rights to personal identity and to form a family.
The normative scope of the right to personal identity includes not only each human person’s natural right to their own difference, but also the right to one’s ‘personal historicity’, as expressed in each person’s relationship with those who gave rise to him/her. This relational dimension includes the right to know who one’s parents are or were, and it is this that leads on to the right to investigate one’s paternity and/or maternity.
However, notwithstanding their constitutional-law nature, these rights are not absolute, nor do they always project the same intensity of value when confronted with other values and interests that also warrant constitutional protection. Based on its assessment of the relative values present before it, the Court found no unconstitutionality in the norm in question.
One Justice dissented from the majority decision, arguing that there should be no time limit on a presumed son/daughter’s right to challenge paternity. She took the view that the rights to personal identity and the free development of one’s personality trump the interests in legal certainty, the protection of constituted families and the privacy of personal life, and society’s interest in the stability of family relations.
Rulings nos. 23/06 (29-03-2006); 609/07 (11-12-2007); 99/88 (28-04-1988); 413/89 (31-05-1989); 456/03 (14-10-2003); 486/04 (07-07-2004); 23/06 (10-01-2006); 626/09 (02-12-2009); 65/10 (04-02-2010); 401/11 (22-09-2011); 247/12 (22-05-2012); 547/14 (15-07-2014); 704/14 (28-10-2014); 14/09 (13-01-2009); 589/07 (28-11-2007); 593/2009 (18-11-2009); 179/10 (12-05-2010); 279/08 (14-05-2008); 546/14 (15-07-2014); 446/10 (23-11-2010); 39/11 (25-01-2011); 449/11 (11-10-2011); 634/11 (20-12-2011); and 441/13 (15-07-2013).